Tuesday, April 6, 2010

Terrorists more protected than law abiding citizens

Kevin Bankston of the Electronic Frontier Foundation reports on the decision in the case of Al-Haramain Islamic Foundation v. Obama. The decision says that Al-Harmain has met the Foreign Intelligence Surveillance Act (FISA) requirements that they prove they had a legitimate complaint using only "non-classified" information. That means that the government tapped their phones illegally, and will have to provide relief as provided by FISA. The Obama administration, following Bush's lead, tried to use "states secrets privilege" to avoid admitting or denying that any wiretapping took place, but the court wisely determined that FISA trumps states secret privilege.

I've read the FISA, and there is no reason at all for any surveillance that is remotely legitimate to be done illegally. FISA has provisions for emergency surviellance that allow the surveillance to be done BEFORE the warrant is requested, let alone issued. The base rule is file for the warrant within 30 days, but that can be extended up to a year in some circumstances. So the only real reason to avoid admitting or denying the surveillance is if, in fact, the surveillance took place and a warrant was never obtained. Or at least one of the parties being watched was a US citizen, and more information was gathered than the law allows.

The reason all of this means that terrorists are more protected than law abiding citizens is that surveillance of just about every phone call made in the US is still going on, and there is nothing we can do about it. But a group that has been determined to have connections to terrorists has managed to sue the government and win. They won because FISA limits the surveillance that can be done on US citizens communicating with non-citizens. Meanwhile the rest of us are being spied on by our government because the 4th Amendment doesn't apply to us when our information is entrusted to a 3rd party. So I would have more protection from government surveillance if I communicated with known terrorists than I have calling my mom and dad. If that isn't bass ackwards I don't know what is.

If you'd like to know more about the Foreign Intelligence Surveillance Act without having to go through the legalese, the Wikipedia article is a good general overview of it.